Citation Nr: 0902841
Decision Date: 01/27/09 Archive Date: 02/09/09
DOCKET NO. 04-24 137 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUES
1. Entitlement to service connection for a bilateral hearing
loss disability.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
T.S. Willie, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1966 to July 1969
with subsequent service in the Army Reserves.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a September 2003 rating decision rendered by the
St. Paul, Minnesota, Regional Office (RO) of the Department
of Veterans Affairs (VA)
This case was remanded by the Board in October 2006 for
further development.
FINDINGS OF FACT
1. A bilateral hearing loss disability was not manifest in
service and an organic disease of the nervous system was not
manifest within one year of separation.
2. A bilateral hearing loss disability is not attributable
to service.
3. Tinnitus is attributable to service.
CONCLUSIONS OF LAW
1. A bilateral hearing loss disability was not incurred in
or aggravated by service and an organic disease of the
nervous system may not be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2008).
2. Tinnitus was incurred in service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 &
Supp. 2006), and the pertinent implementing regulation,
codified at 38 C.F.R. § 3.159 (2008), provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. As part of the notice, VA is to specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119
(2004). The timing requirement enunciated in Pelegrini
applies equally to the initial disability-rating and
effective-date elements of a service connection claim.
Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The record reflects that the originating agency provided the
veteran with the notice required under VCAA by letter dated
in June 2003. The letter provided adequate notice with
respect to the evidence necessary to establish a claim for
service connection, but it did not provide notice of the type
of evidence necessary to establish a disability rating or
effective date for the disability on appeal. See Dingess,
supra. However, the veteran was subsequently provided notice
pertaining to these latter two elements in October 2006,
prior to the issuance of a supplemental statement of the case
(SSOC). Although the veteran received inadequate
preadjudicatory notice, and that error is presumed
prejudicial, the record reflects that she was provided with a
meaningful opportunity such that the preadjudicatory notice
error did not affect the essential fairness of the
adjudication now on appeal.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefits sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008).
In connection with the current appeal, appropriate
examinations have been conducted and available service
records have been obtained. We also note that the VA
examination was adequate. The examiners reviewed the
history, established clinical findings and presented reasons
for the opinions.
For the foregoing reasons, the Board concludes that all
reasonable efforts were made by VA to obtain evidence
necessary to substantiate the claim. The evidence of record
provides sufficient information to adequately evaluate the
claim, and the Board is not aware of the existence of any
additional relevant evidence which has not been obtained. No
further assistance to the appellant with the development of
evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. §
3.159(d). Accordingly, the Board will address the merits of
the claim.
Factual Findings
Service medical records show that the veteran's hearing was
reported normal at separation in June 1969. The June 1969
audiological evaluation disclosed:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
X
0
LEFT
0
0
0
X
0
At that time, the veteran denied ear trouble and hearing
loss.
The audiological evaluation of October 1978 showed:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
X
0
LEFT
5
0
0
X
10
The audiological evaluation of September 1982 showed:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
5
0
0
LEFT
15
5
0
0
10
A private examination in April 1985 showed:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
0
5
5
LEFT
20
15
0
5
30
The veteran's ears were reported normal in October 1978,
October 1982, October 1985, September 1986 and February 1990.
The veteran denied ear trouble and hearing loss during these
examinations. The veteran was awarded a sharpshooter badge
for rocket launcher.
The veteran was afforded a VA compensation and pension
examination in August 2003. Complaints of tinnitus and
hearing loss were noted. On the authorized audiological
evaluation, pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
--
20
15
5
20
LEFT
30
30
10
20
35
Speech audiometry revealed speech recognition ability of 94
percent in both ears. The examiner noted that it is not
likely that the veteran's hearing loss and tinnitus are
related to the veteran's military service. The examiner
noted that the veteran denied having tinnitus during service
and reported the onset of tinnitus approximately 3 to 4 years
prior to the examination.
In May 2004, E.S. noted that the veteran had mild hearing
loss on the left ear and that in her opinion it was caused by
loud noises. She noted that she could not make a definitive
statement regarding the exact cause of tinnitus. However,
she maintained that a person who has a history of noise
exposure can have tinnitus and that noise exposure is by far
the most probable cause of tinnitus. She further noted that
very loud sounds, such as gun blasts, can result in tinnitus
which can be either temporary or permanent. The audiological
evaluation revealed that, pure tone thresholds, in decibels,
were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
30
15
25
25
LEFT
40
30
20
25
45
The veteran was afforded another VA compensation and pension
examination in July 2008. The examination was conducted by
audiologist A.M.P. The veteran complained of ringing in both
ears. He thought he was getting hearing loss.
On the authorized audiological evaluation, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
30
15
10
30
LEFT
30
30
15
20
45
Speech audiometry revealed speech recognition ability of 96
percent in both ears. The examiner opined that, by history,
tinnitus is at least as likely as not (50/50 probability)
caused by or a result of military noise exposure. The
examiner noted that given normal hearing audiogram dated in
1982, hearing impairment is less likely as not (less than
50/50 probability) caused by or a result of military noise
exposure.
Later that month in July 2008, the veteran was seen by
physician G.G. During this examination, the veteran
complained of intermittent tinnitus. Subjective hearing loss
was also noted. G.G. opined that given the veteran's near
normal audiogram and normal audiogram in 1982, in agreement
with the audiologist, the veteran's impairment is less likely
as not caused by or a result of his military noise exposure.
He further opined that the veteran's tinnitus is at least as
likely as not caused by or a result of his military noise
exposure. The examiner noted that the veteran had no other
ear complaints other than tinnitus and subjective hearing
loss at that time.
Via various statements the veteran has maintained that he has
had ringing in his ears since Vietnam and that he thought
that it was normal to have ringing in his ears. The veteran
noted that when he was initially asked about the onset of his
tinnitus in the VA examination of August 2003, he did not
know what tinnitus was until it was explained to him. The
veteran reported experiencing tinnitus since service.
Legal Criteria
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §1110 (West 2002). Service connection basically
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein. 38 C.F.R.
§ 3.303 (2008). Service connection for an organic disease of
the nervous system, including sensorineural hearing loss, may
be granted if manifest to a compensable degree within one
year following separation from service. See 38 U.S.C.A. §§
1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2007). Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2008).
A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the in-service
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1995).
For a showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. If the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (2008).
The threshold for normal hearing is from 0 to 20 decibels.
Hensly v. Brown, 5 Vet. App. 155, 157 (1993). For the
purposes of applying the laws administered by VA, impaired
hearing will be considered to be a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2008).
The Board notes that the provisions of 38 U.S.C.A. § 1154(b)
do not apply, as it has not been claimed that the disability
was incurred while engaging in combat. Although the veteran
reports exposure rocket fire and small arms fire, he has not
reported that he engaged in actual combat.
Analysis
Entitlement to service connection for a bilateral hearing
loss disability
The veteran seeks service connection for a bilateral hearing
loss disability. The veteran argues that exposure to rocket
fire and small arms fire during service caused his condition.
After review of the evidence, the Board finds against the
veteran's claim.
The Board recognizes that the veteran has established a
current hearing loss disability in accordance with VA
regulation. See 38 C.F.R. § 3.385. The veteran's July 2008
VA examination shows that the veteran's auditory thresholds
for at least three of the frequencies 500, 1000, 2000, 3000,
or 4000 Hertz are 26 decibels or greater. However, while the
evidence of record shows that the veteran has a bilateral
hearing loss disability, there is little persuasive evidence
of record that establishes a nexus, or link, between the
disability and the veteran's service.
The veteran's service medical records did not reveal any
hearing loss complaints, findings or diagnoses. As noted,
the veteran's ears were reported normal at separation in June
1969. At that time, the veteran denied ear trouble and
hearing loss. The veteran's ears were also reported normal
in October 1978, October 1982, October 1985, September 1986
and February 1990. The veteran denied ear trouble and
hearing loss during those examinations. Although E.S. noted
in May 2004 that the veteran had mild hearing loss on the
left ear and that in her opinion it was caused by loud
noises. The Board notes that ES does not establish any
medical credentials or credentials recognized by VA. See
38 C.F.R. § 4.85. The Board also notes that E.S. did not
attribute the veteran's hearing loss directly to service.
However, the August 2003 VA examiner opined that it is not
likely that the veteran's hearing loss is related to his
military service. Audiologist A.M.P. opined in July 2008
that that given normal hearing audiogram dated in 1982,
hearing impairment is less likely as not (less than 50/50
probability) caused by or a result of military noise
exposure. Also in July 2008, physician, G.G. opined that
given the veteran's near normal audiogram and normal
audiogram in 1982, in agreement with the audiologist, the
veteran's impairment is less likely as not caused by or a
result of his military noise exposure. The Board finds the
opinions of the August 2003 and July 2008 VA examiners to be
more probative regarding the etiology of the veteran's
current bilateral hearing loss disability. The Board notes
that the opinions are based upon review of the veteran's
service medical records and post service records. The
opinions are also consistent with the normal findings at
separation and the veteran's denial of hearing loss at that
time.
To the extent that the veteran asserts that his bilateral
hearing loss disability is attributable to service, the Board
notes that the veteran separated from service in 1969.
However, the records show the earliest mention of any hearing
loss is in 2003, which is more than 34 years after
separation. Although symptoms, not treatment, are the
essence of any evidence of continuity of symptomatology, in a
merits context the lack of evidence of treatment may bear on
the credibility of the evidence of continuity. See Savage v.
Gober, 10 Vet. App. 488 (1997). Here, we find that an
assertion of chronicity and/or continuity is less reliable
than the normal separation examination, the denial of hearing
loss at separation and the silence of the record within three
decades of separation from service. The Board is not holding
that corroboration is required. Rather, we find his
assertions to be less credible than the normal
contemporaneous records.
The veteran's assertions of a bilateral hearing loss
disability due to in-service noise exposure are not
persuasive. We conclude that neither chronicity nor
continuity of symptomatology is established. The
preponderance of the evidence is against the claims for
service connection. Because there is no approximate balance
of positive and negative evidence, the rule affording the
veteran the benefit of the doubt does not apply. 38 U.S.C.A.
§ 5107(b) (West 2002). See Dela Cruz v. Principi, 15 Vet.
App. 143 (2001). See also 38 C.F.R. § 3.102 (2008).
Entitlement to service connection for tinnitus
The veteran is seeking service connection for tinnitus.
Having reviewed the evidence pertaining to the veteran's
claim, the Board concludes that service connection for
tinnitus is warranted.
The evidence shows that the veteran reported tinnitus in his
August 2003 VA examination. The veteran has also reported
experiencing a ringing in his ears since service.
The Board finds that the evidence supports a finding of a
nexus between the noise the veteran was exposed to in service
and the current tinnitus. The veteran's reports about the
frequency and duration of the noise exposure during service
are persuasive. In May 2004, E.S. noted that she could not
make a definitive statement regarding the exact cause of
tinnitus. However, she maintained that a person who has a
history of noise exposure can have tinnitus and that noise
exposure is by far the most probable cause of tinnitus. She
further noted that very loud sounds, such as gun blasts, can
result in tinnitus which can be either temporary or
permanent. The Board further notes that A.M.P., a VA
audiologist, opined in July 2008 that, by history, tinnitus
is at least as likely as not (50/50 probability) caused by or
a result of military noise exposure. Also, VA physician,
G.G., opined that the veteran's tinnitus is at least as
likely as not caused by or a result of his military noise
exposure.
The Board recognizes that the August 2003 VA examiner opined
that it is not likely that the veteran's tinnitus is related
to the veteran's military service. The examiner further
noted that the veteran denied having tinnitus during service
and reported the onset of tinnitus approximately 3 to 4 years
prior to the examination. However, the Board will afford
more probative value to the opinions of the July 2008 VA
examiners.
The Board finds the July 2008 VA examiners opinions that the
veteran's tinnitus is at least as likely as not caused by or
a result of his military noise exposure persuasive.
Accordingly, service connection for tinnitus is granted.
ORDER
Service connection for a bilateral hearing loss disability is
denied.
Service connection for tinnitus is granted.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs